Affirmative Action Plans: Are those still a thing?

By Maureen E. James - Skoler Abbott P.C.

July 17, 2025

There have been some changes to how the federal government is dealing with the requirement for federal contractors to have Affirmative Action Plans since the Trump Administration came into office six months ago.  In an Executive Order issued on January 21, 2025: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” the Administration rescinded a previous order and required the OFCCP to “immediately cease” promoting diversity, holding federal contractors responsible for fulfilling the “affirmative action” obligations imposed by the previous Executive Order 11246, and allowing or encouraging federal contractors to engage in “workforce balancing” based on race, color, sex, sexual preference, religion, or national origin.  The Secretary of the Department of Labor then issued a statement on January 24th reiterating the main points of the new Executive Order and specifically stating that the OFCCP no longer has the authority to act under the rescinded Order, however advising that the OFCCP will maintain its authority under Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Act which apply to individuals with disabilities and veterans, respectively.

For a 90-day brief period, a safe harbor period was in effect where federal contractors were allowed the option to continue to comply with obligations stemming from the now revoked-Executive Order 11246.  Since the expiration of that safe harbor period, the OFCCP has not indicated that they intend to move forward with any requirements for federal contractors to have Affirmative Action Plans and stated that the OFCCP would not be undertaking any enforcement related to said plans.  The plan mandate under 503/VEVRAA remained and on July 1st the Secretary of Labor issued Order 08-2025 allowing the OFCCP to resume activities under 503/VEVRAA.  This Order also stated that they were closing all compliance reviews related to plans under 503/VEVRAA because of their entanglement with the rescinded Executive Order.  Because the OFCCP is trying to separate the requirements of 503/VEVRAA from the rescinded Order, they are keeping the certification period for employers to confirm 503/VEVRAA plan compliance closed.

At this point, it is clear that the DOL is undertaking efforts to discontinue the requirements for federal contractors specifically as to AAPs.  This appears to also include Section 503, as the Department has proposed rules that would remove the requirements for federal contractors to invite voluntary self-identification of disabilities and to cease the use of utilization goals for individuals with disabilities under Section 503.  This does not mean that the other aspects of federal and state anti-discrimination and reporting laws are no longer in play.  But, at this time the federal government is not requiring employers to create plans specifically addressing employee data and potential disparities among certain employee populations. 

On June 27th, the head of the OFCCP issued a letter inviting federal contractors to voluntarily file a narrative report outlining the efforts they were taking to “wind down” prior plans.  In light of this, employers who are federal contractors should review any plans currently in place under the rescinded Executive Order 11246, Section 503 and/or VEVRAA to determine if they should cease and/or revise those plans.  While these efforts are being undertaken a determination of whether to file an optional statement with the OFCCP regarding those efforts can be evaluated, but that decision should be made with the advice of counsel.  Additionally, for those that are wondering whether they should be enacting and/or updating plans in the near future, we strongly recommend seeking legal advice before data collection and planning, in particular with data related to race or gender, to ensure compliance with the evolving regulations and orders.   Although certification and enforcement are not being managed by the OFCCP at this time, the obligations under 503/VEVRAA remain and employers should consider preparing a plan specifically in compliance with those regulations only.  This would be limited data reporting for those who self-identify as disabled and/or veterans only.

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